Shri Kunjbihari H. Desai, Godhra V. The Income tax Officer, Ward-1, Godhra

ITA 1407/AHD/2015

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 8186 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 6 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-11-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2007-2008
• Appeal Filed On: 19-05-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SANTOSH KARNANI
• Assessee Lawyers: D K PARIKH
• Keywords: Reassessment proceedings
• Section: 143(3); 148

Judgement Text

SMC-ITA NO. 1407/AHD/2015 SHRI KUNJBIHARI H DESAI VS. ITO ASSESSMENT YEAR: 2007-08 PAGE 1 OF 3 IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, AHMEDABAD [ BEFORE SHRI PRAMOD KUMAR, ACCOUNTANT MEMBER ] ITA NO. 1407/AHD/2015 ASSESSMENT YEAR : 2007-08 SHRI KUNJBIHARI H. DESAI ............APPEL LANT B-6, SAMRATNAGAR, BAMROLI ROAD, GODHRA [PAN : ACDPD 3203 D] VS. INCOME TAX OFFICER .......................RESPONDENT WARD-1, GODHRA APPEARANCES BY: DK PARIKH FOR THE APPELLANT SANTOSH KARNANI FOR THE RESPONDENT DATE OF CONCLUDING THE HEARING : 22.11.2017 DATE OF PRONOUNCING THE ORDER : 22.11.2017 D I C T A T E D O R D E R 1. THIS APPEAL IS DIRECTED AGAINST THE ORDER DATED 12 TH FEBRUARY 2015 PASSED BY THE LEARNED CIT(A)-4, VADODARA, IN THE MATTER OF AS SESSMENT UNDER SECTION 143(3) R.W.S. 147 OF THE INCOME-TAX ACT, 1961, FOR THE ASS ESSMENT YEAR 2007-08. 2. IN THE THIRD GROUND OF APPEAL, WHICH WE WILL TAK E UP FIRST, THE ASSESSEE HAS RAISED FOLLOWING GRIEVANCE:- 3. THE REASSESSMENT IS ALSO INVALID AND BAD IN LAW SINCE AS PER NOTICE U/S 148, THE APPROVAL IS GIVEN BY CIT-III, BARODA AND N OT BY JOINT CIT AS REQUIRED BY SECTION 151(1) SINCE REASSESSMENT IS INITIATED W ITHIN FOUR YEARS. IT BE SO HELD NOW AND REASSESSMENT ORDER BE ANNULLED AS HELD BY JURISDICTIONAL TRIBUNAL. 3. WHEN THIS APPEAL WAS CALLED OUT FOR HEARING, LEA RNED COUNSEL FOR THE ASSESSEE INVITED OUR ATTENTION TO A SERIES OF BINDI NG JUDICIAL PRECEDENTS, INCLUDING THE HONBLE BOMBAY HIGH COURT JUDGMENT IN THE CASE OF D SJ COMMUNICATION LTD VS. DCIT, [2014] 41 TAXMANM.COM 151 (BOMBAY), WHEREIN I T IS HELD THAT WHERE THE STATUTE REQUIRES SPECIFIC PERMISSION OF THE JOINT C OMMISSIONER OF INCOME-TAX, FOR RE- OPENING OF THE ASSESSMENT, THE PERMISSION GRANTED B Y THE HIGHER AUTHORITY CANNOT SUBSTITUTE FOR THE SAME. LEARNED COUNSEL FOR THE A SSESSEE, IN THE LIGHT OF THIS LEGAL POSITION, INVITES MY ATTENTION TO THE FACT THAT NOT ICE DATED 19.03.2012 ISSUED BY THE ASSESSING OFFICER UNDER SECTION 148 OF THE ACT, WHI CH SPECIFICALLY STATES THAT THE NOTICE IS BEING ISSUED AFTER OBTAINING NECESSARY SA TISFACTION OF THE COMMISSIONER OF INCOME-TAX-III, BARODA. LEARNED COUNSEL SUBMITS THAT, AS IS EVIDENT FROM TH E PLAIN READING OF THE NOTICE, THE APPROVAL FOR REOPENING O F THE ASSESSMENT IN THE PRESENT SMC-ITA NO. 1407/AHD/2015 SHRI KUNJBIHARI H DESAI VS. ITO ASSESSMENT YEAR: 2007-08 PAGE 2 OF 3 CASE HAVE BEEN TAKEN FROM THE COMMISSIONER OF INCOM E-TAX, WHEREAS THE APPROPRIATE AUTHORITY FOR GRANTING THIS PERMISSION, ON THE FACTS OF THE PRESENT CASE, WAS THE LEARNED JOINT COMMISSIONER OF INCOME-TAX. HE THUS URGES ME TO QUASH THE RE-ASSESSMENT PROCEEDINGS FOR THIS SHORT REASON ALO NE. 4. LEARNED DEPARTMENTAL REPRESENTATIVE, ON THE OTHE R HAND, SUBMITS THAT MERELY BECAUSE APPROVAL HAS BEEN GIVEN BY THE COMMISSIONER OF INCOME-TAX, IT DOES NOT MEAN THAT THE JOINT COMMISSIONER CONCERNED WAS OUT OF THE LOOP, BECAUSE ESSENTIALLY THE PROCESS FOR RE-OPENING HAS TO BE RO UTED THROUGH HIM. IT WOULD, THEREFORE, BE INAPPROPRIATE TO DRAW THE CONCLUSION THAT MERELY BECAUSE THE COMMISSIONER HAS GRANTED APPROVAL, THE APPROVAL HAS NOT BEEN GRANTED BY THE JOINT COMMISSIONER. AS A MATTER OF FACT, ACCORDING TO THE LEARNED DEPARTMENTAL REPRESENTATIVE, IT IS INHERENT PART OF THE PROCESS OF APPROVAL BEING GRANTED BY THE COMMISSIONER THAT THE APPROVAL IS ALSO GIVEN BY THE JOINT COMMISSIONER. HE, HOWEVER, FAIRLY ACCEPTS THAT HE IS NOT ABLE TO DEMO NSTRATE, EVEN AFTER CONSULTING THE CASE RECORDS, THAT A SPECIFIC APPROVAL HAS BEEN GIV EN BY THE JOINT COMMISSIONER. IN BRIEF REJOINDER, LEARNED COUNSEL FOR THE ASSESSEE A GAIN POINTS OUT THAT IN THE ABSENCE OF SPECIFIC APPROVAL GIVEN BY THE JOINT COM MISSIONER, WHICH HAS TO BE DEMONSTRATED AND NOT MERELY INFERRED, THE REASSESSM ENT PROCEEDINGS CANNOT BE SUSTAINED. 5. HAVING HEARD THE RIVAL CONTENTIONS AND HAVING PE RUSED THE MATERIAL ON RECORD, I SEE MERITS IN THE PLEA TAKEN BY THE LEARNED COUNS EL. AS HELD BY HONBLE BOMBAY HIGH COURT IN THE CASE OF DSJ COMMUNICATION LTD (SU PRA), THE MERE FACT THAT THE APPROVAL BY THE COMMISSIONER, FOR REOPENING THE ASS ESSMENT, IS ON RECORD WOULD NOT BE SUFFICIENT TO GIVE LEGALITY TO THE REASSESSMENT PROCEEDINGS WHERE A SPECIFIC PRIOR APPROVAL OF THE JOINT COMMISSIONER IS REQUIRED. R ESPECTFULLY FOLLOWING THE ESTEEMED VIEWS OF HONBLE HIGH COURT (SUPRA) AND IN THE ABSENCE OF ANY CONTRARY DECISION BY HONBLE JURISDICTIONAL HIGH COURT, THE VIEW SO EXPRESSED BY THE HONBLE HIGH COURT (SUPRA) IS FULLY BINDING UPON US. I, TH EREFORE, UPHOLD THE PLEA OF THE ASSESSEE AND QUASH THE RE-ASSESSMENT PROCEEDINGS AS SPECIFIC APPROVAL OF THE JOINT COMMISSIONER IS NOT ON RECORD BEFORE ME. THE GROUND NO.3 IS THUS ALLOWED. 6. THE LEARNED REPRESENTATIVES FAIRLY AGREE THAT ON CE THE REASSESSMENT PROCEEDINGS ARE QUASHED, THE OTHER GRIEVANCES RAISE D BY THE ASSESSEE ARE ACADEMIC AND REQUIRE NO ADJUDICATION. ACCORDINGLY, THE GRIEVANCES RAISED IN REST OF THE GROUNDS ARE DISMISSED AS INFRUCTUOUS. 7. IN THE RESULT, THE APPEAL IS ALLOWED AS INDICATE D ABOVE. DICTATED AND PRONOUNCED IN THE OPEN COURT TODAY ON THE 22 ND NOVEMBER, 2017. SD/- PRAMOD KUMAR (ACCOUNTANT M EMBER) AHMEDABAD, THE 22 ND DAY OF NOVEMBER, 2017 **BT SMC-ITA NO. 1407/AHD/2015 SHRI KUNJBIHARI H DESAI VS. ITO ASSESSMENT YEAR: 2007-08 PAGE 3 OF 3 COPIES TO: (1) THE APPELLANT (2) THE RESPONDENT (3) COMMISSIONER (4) CIT(A) (5) DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER TRUE COPY ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCHES, AHMEDABAD 1. DATE OF DICTATION: ......3 PAGES DICTATION PAD ATTACHED.22.11.2017 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE T HE DICTATING MEMBER: ..22.11.2017. ........ 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR . P.S./P.S.: .... 22.11.2017... . 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE TH E DICTATING MEMBER FOR PRONOUNCEMENT:. 22.11.2017.. 5. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK : .. 22.11.2017... 6. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK : . 7. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER: